Top 10 Family Law Questions in Brisbane

We deliver to you the Top 10 Family Law Questions asked to us by our clients in Brisbane.

1. What is a Legal Separation and Divorce?

A Legal Separation or Divorce is legal recognition of the conclusion of your marriage.

You gain a Divorce if your marriage has broken down irretrievably and you’ve been officially separated for a minimum of 12 months.

Importantly, you don’t have to prove who was “at fault” and you don’t have to wait for the full 12 months after separation to conclude a property settlement.

2. What is the definition of a de facto relationship?

Contrary to public belief, there is no single “legal definition” of a de facto relationship because there are different requirements for various legal purposes.

Generally speaking though, a de facto relationship exists between 2 persons (who aren’t legally married) of the same or opposite sex (who aren’t related by family) and, to all intents and purposes of the partnership, have a relationship with the same as that of an officially married couple living together on a genuine domestic basis.

3. What is child support or child maintenance?

As soon as you are separated, you can lodge an Application with the Department of Human Services (Child Support) to have child maintenance or child support assessed for your child in the event you are unable to come to an agreement with the child’s other parent.

4. What is a Parenting Order and is it important?

A Parenting Order made by the Court will often deal with the following issues:

• Determination of parental responsibility (i.e. who will carry the duties, powers, and authority, which by law parents have) regarding the children (whether solely or jointly cared for);
• Who the children are to reside with; and further
• How the children are to spend time with each parent;
• All other aspects of the care, welfare, and development of the children, as well as any other aspect of parental care for the children.

When a Parenting Order is made by a Judge, it is a legal requirement that all parties follow the Order specifications.

If a parent refuses to follow a Parenting Order (and is unable to show a reasonable excuse), it is called “contravening a Parenting Order”.

There are serious ramifications that flow from a contravention of a Parenting Order such that it is possible for the Court to order parents to attend programs, facilitate “makeup” time, enter a bond, pay a fine, or even 12 months imprisonment.

It is therefore important that you read and understand the terms of a Parenting Order made by a Court.

5. How does a Court determine who the child will live with and spend time with?

Contrary to popular perception, there is no “fixed rule” about whom a child shall stay with (previously referred to as “child custody”) and whom a child shall spend time with (previously referred to as “child access”).

The Court’s top priority in determining which parent the child shall live with and how much time the child will spend with the other parent is what is in the “best interests of the child.”

The Family Law Act 1975 sets out the main factors that are to be taken into account in determining the best interests of the child or children.

6. How does a Judge determine a property settlement amount?

Contrary to belief, the process that the QLD Courts use to calculate a family law property settlement, is not a “mathematical” one.

Unlike in other countries and regions, there is no “starting rebuttable presumption” that the parties’ net property pool is equally divided “50/50.”

Each relationship is considered unique and is determined based on a number of discretionary factors.

The Court has a wide scope to consider in making the property settlement orders and as a result, the outcome can vary significantly.

For example, you could potentially get 10 unique outcomes before 10 unique Judges on any given day at Trial and each outcome would be legal and acceptable, as long as it falls within a range of plausible outcomes.

In general practice, the Judge generally adheres to a well-established process that involves a number of steps to determine the entitlement of each party in the relationship.

These steps are as follows:

• The Court must decide if it would be just and equitable to adjust or change the parties’ current legal ownership of assets.
• To list all of the current assets, liabilities, and superannuation of each of the parties and arrive at a net figure, or what becomes known as the “total net property pool”.
• To ascertain the contributions of each of the parties throughout the relationship, to the net property pool, and to the welfare of the family. Contributions can be direct (eg. made by one of the parties to the relationship) or indirect (eg. one of the parties’ family members’ contributions), financial (eg. earning money), or non-financial (eg. improvements to a property performed by one party) or made as a homemaker or stay at home parent. Each of these contributions is determined as a single percentage or a range of percentages.
• To assess the current and future circumstances of each of the parties and make adjustments to the percentage arrived at in step 3 above. The list of factors can be found in Section 75(2) of the Family Law Act 1975 including:The age and state of health of both of the parties;The income-earning capacity or a financial discrepancy between both of the parties;The total length of the relationship and its overall effect on both of the parties earning capacities; andWho has primary care of the children into the future
• For the Court to “step back” and assess whether the percentage or division achieved by the application of the above 4 steps is suitable or “just and equitable” in the overall sense.

7. What is a spousal maintenance payment?

Spousal maintenance is sums of money paid from one spouse (i.e. the paying party) to the other (i.e. the receiving party) in situations where the receiving spouse is unable to support themselves “appropriately”, after separation.

When determining if spousal maintenance is suitable, the Judge will consider:

• Whether a “threshold” is met (i.e. if there is a “requirement” for one of the parties to be financially supported by the other);
• The capacity of the paying party to support the receiving party for a period of time; and
• The outline is covered in Section 75(2) of the Family Law Act 1975; and
• The overall extent of financial support needed (i.e. what is ‘suitable’ under the circumstances) and the amount of time support is needed to be paid for.

Most importantly the Court is not required to ensure that either party has the “same standard of living” that they had during the relationship.

It only has to be reasonable under all the circumstances.

8. Must I formalise my property settlement in Court?

After separation, it is critical to formally resolve the issue of a property settlement and have any agreement formally recorded in “Consent Orders” (which are lodged at and approved by a Judge at the Family Law Courts) or enter into a Binding Financial Agreement as per the Family Law Act 1975 (known as a “BFA”).

Unless a property settlement is ruled on by a Court Order or is properly recorded in a Consent Order or BFA, the issue of property settlement is always potentially “alive” (albeit subject to time constraints) and either one of the parties can commence proceedings in the future to make a claim against the other party.

Cost savings and tax advantages in transferring property and signing documents pursuant to a Consent Order or a BFA may also be possible. This will include implications such as capital gains tax and stamp duty exemptions.

9. Are there any relevant time limits to be aware of in Family Law property settlements?

Be aware that parties must resolve or commence proceedings for a property settlement and/or spousal maintenance within 12 months after you have obtained your Divorce officially.

Alternatively, you must seek leave of the Court to do so (which is generally only allowed under exceptional circumstances). This is normally a difficult, costly and lengthy process.

Note that a financial claim at the end of a de facto relationship must be filed within 2 years after the date that the de facto relationship ended.

Parties can (and should) commence negotiations or file an Initiating Application for property settlement and/or spousal maintenance immediately upon formally separating from their spouse based on the irretrievable and permanent breakdown of the relationship.

10. Do I need to update my Will, Superannuation, and Powers of Attorney or Enduring Powers of Attorney upon separation?

After formal separation, it is critical to examine the terms of your Will (if you have one) or create a new Will to properly reflect the change in your circumstances.

It is also very important to consider who is named as a beneficiary in your Superannuation policy and if you wish to change the beneficiary (as in most cases, this will be your spouse).

Also, examine any Powers of Attorney and/or Enduring Powers of Attorney you put in place during your relationship. In most situations, it may be advisable to revoke those Powers of Attorney as soon as possible after formal separation.

If you have a different question regarding Family Law, we’d love to hear from you.

If you wish to know more, please contact one of our experienced Brisbane Family Lawyers at 1800 217 217 to arrange your free 20-minute initial appointment today.

Article Source: Brisbane Family Law Questions 

Right to compensation for water ingress into a tenanted unit

If you are a tenant and live in a unit affected by water ingress from a neighbour’s unit, you may be entitled to compensation from the lessor or the person/entity who leased you the property (eg. property manager).

What can be affected?

When there is a flood of water from the above or adjacent unit into your unit, it can cause damage to your possessions and the situation can adversely affect your occupation of the unit. In a hypothetical scenario, the ingress can affect the following. (Note that the list is not exhaustive)

Your electricity, cooling appliances such as ceiling fan, furniture items such as lounge, and carpeting materials.

What can be compensated for?

• Disruption to your ordinary daily life
• Loss of full use of kitchen, bedroom, bathroom, and toilet
• Inconvenience and distress suffered by a tenant

How do I notify the lessor or property manager about my issue?

Once the above issue arises, you as the tenant are required to issue a notice to remedy the breach and send this to your lessor (if the unit is directly managed by the lessor) or to your property manager as soon as possible.

Is notice to the lessor or property manager necessary?

The short answer is yes, but it also depends. For instance, in Rental Express Pty Ltd v Finch & Sweeney [2015] QCATA 149, it was said a notice to remedy breach was relevant because the tenant who wished to terminate the tenancy was required to issue a notice to remedy the breach. But, in some compensatory claims such as the above, it cannot be said that a claim against a lessor or property manager cannot be brought if a notice to remedy breach has not been issued.

What else do I need to do in case of water ingress to my unit?

Obtain legal advice if you are able to. Making sure that you take photos of all damaged and affected areas including any household item such as a mattress. Also, ensure that before disposing of any damaged item, you document and keep evidence of why and how they were disposed of (eg. If keeping the damaged mattress affected by the ingress of water in the unit will be a health issue for tenants). It is best that you seek legal advice as to whether you are able to dispose of any damaged item, and if so, how to document it.

For advice or assistance with all residential and commercial property matters contact the Property Law Team at Aylward Game Solicitors today at 1800 217 217

Article Source: Water ingress 

What Are The Effects Of Changing The Nature Of Parental Responsibility On The Life Of A Child?

By law, there are some defined duties, powers, authority, and responsibilities of parents for their children. These are known as parental responsibility. The responsibilities include the child’s growth, education, and religion. Give them a proper environment and teach them discipline. You will have to take legal proceedings on your child’s behalf. The key responses in regards to the changing nature of parental responsibility initiated by the legal system are the Family Law (Shared Parental Responsibility Australia) Act 2006 (Cth)

You will find different duties of parents in various statutes. For instance, according to 285, 286 Criminal Code Act 1899, the parents must provide the child with all the necessities including medical treatment, lodging, clothing, food, and care. Also, it is stated in 176 Education General Provisions Act 2006 QLD, that it is the duty of parents to enroll the child in a school and ensure attendance. The concept of the changing nature of parental responsibility has seen immense change in responding to recognizing the responsibilities parents possess in regard to aligning decisions with the child’s best interest, as particularly stated in Article 3 of Croc.

Who has parental responsibility?

According to the parental responsibility family law act, original parents or artificial surrogacy parents are authorized for parental responsibility. They do not need a court order for that. The grandparents or the step-parents can get involved in the care of the child. They have the authority to make decisions for the child.

It continues till the child is 18 or the marriage ends. The court wants the parents to share their responsibilities even after divorce. So, the child can have love from both parents. Parental responsibility applies whether the parents were married, or were in a relationship.

Equal shared parental responsibility:

If the child is under 18 and the parents are no longer together, then they can share the responsibilities of the child. It is called equal shared responsibility. None of them can decide the long-term issues of the child. For instance, a child’s school, medical treatments, and religion.

It is applicable until the court gives an order in the best interest of the child. It can remove parental responsibility from one or both parents.

When parents are not together:

When the parents are no longer together, there is a need to make arrangements for the care of the children. The adults and parents can make their own decision. This decision is acceptable until it is in the favour of the safety of the child, or else get help from the court.

If the parents are unable to communicate effectively they can request the court to give a parenting order.

The court will decide that:

• With whom the child will live.
• How much time can the child spend with each person?
• Responsibility of each parent.

If a child under age 18 leaves home, the parents or the state can force him to come back. In the case of a child with an age of more than 18, you cannot force them.

Rights of parents:

The parents also have rights. Parents can raise their children according to their wishes. They can transfer their beliefs and religion to their children. They can also make decisions for their education and medical treatment. You have all those rights unless the child’s life is at risk.

Working parents have the right to access the information of child-care services on payments.

The rights of parents do not include the custody of the child. For instance, after separation, the court makes a decision in the favor of the child’s best interest.

Changing the nature of parental responsibility in Australia:

The time is not always the same. A happy marriage can turn into separation and then may lead to divorce. So, in this case, parental responsibility can change. It is good if both parents share the responsibilities even after this situation. But, if the parents are unable to make a decision they will need help from the court. The court tries to make a decision to give the child a good life. In this scenario, the court can take or give more rights and responsibilities to each parent. If a parent is earning more he or she will have to donate more in the life of the child.

But the parents should remember that their decision must not affect the life of the child. They have to try and give equal love to their children. This love will not just make them happy but also they’ll have confidence in them. So, don’t fight in front of your children.

Frequently asked questions:

Let’s discuss some of the most commonly asked questions about parental responsibility.

What is the sole parental responsibility in Australia?

Insole parental responsibility in Australia only one parent has complete rights to make major decisions for the child. It is just the opposite of parental responsibility, where both parents have equal rights in making crucial decisions.

How to get sole custody of a child in Australia?

If you want sole custody then you will have to apply to court. Also, you will have to provide a full report which explains all the matters against the other parent. If you can prove to the court that the other parent is not eligible for parenting responsibility then you will get sole custody.

When can a child make decisions?

By law, a child cannot make a decision until he or she turns 18 years.

When a parent is unfit in the eyes of the child?

There are certain conditions when a parent is unfit in the eyes of the court. For instance, abusing, or failing to provide the child with necessities. In these situations, the court can reconsider its order.

Is it legal for my husband to take my child away from me?

Sometimes it is illegal to take the child away from the parent. But if you are married and you don’t have a court order then it is legal for the other parent to take the child away. Also, if your partner has sole custody it is legal for him or her to take the child.

For more information on your specific matter, please contact one of our experienced Brisbane lawyers at Aylward Game Solicitors.

Article Source: Parental Responsibility in Australia 

When can a child decide where they live?

We regularly get asked by clients when their child can decide where they will live and who they will live with. There is no set age at which the Court will allow children to make this decision.

The Court’s paramount consideration when deciding where a child should live is based on the child’s best interests. There are many factors that the Court needs to consider to determine what the best interests of the child are. The Court’s primary considerations are that the child have the benefit of a meaningful relationship with both of the child’s parents and the need to protection the child from physical or psychological harm.

The Court also has additional considerations when determining what is in the best interest of the child. Some examples include: each parent’s ability to look after the child’s needs, the attitude of
each parent, the effect of any change in circumstances may have on the child, the relationship the child has with each parent, and so on. These considerations will be weighed together with the views of where the child wishes to live.

When deciding how much weight to give a child’s view of where he/she wants to live, the Court will consider factors such as:

a) The age of the child – generally the older the child gets the more weight their views will have (e.g the views of a child who is 15 have more weight than a 5-year-old child);

b) The child’s maturity and understanding – maturity levels can vary significantly for children of the same age (e.g you can have two children the same age and have one very mature child who understands the impacts of their view and another child who lacks the insight)

c) Whether the child has been influenced by another parent; and

d) The views of other siblings.

There can also be instances where the Court however considers the child’s views and the other considerations and will still Order that an older and more mature child should spend time with a
parent with who they have said they do not want to spend time with. Unfortunately, it is in not a simple answer.

Children are not required to give evidence to the Court. The way the Court can understand the child’s views is through a Family Report being prepared. A Family Report is a report prepared by either a social worker or a psychologist who reviews the Court material and interviews the parents and the child/ren. In these interviews, the parents and children can express their views and the
Family Report Writer will release a report that sets out the parents and child/ren’s views, an evaluation of the information provided by them, and how much weight should be placed on these
views and they will make recommendations to assist the Court, for example: where the child/ren should live and how much time they spend with the other parent.

As you can see, there is no set age that a child can decide where they wish to live. Generally, the older and more mature they are, the more weight will be given to their views however it is important to remember that the Court’s primary consideration will be the benefit of the child having a meaningful relationship with each parent and the need to protect the child from harm.

At Aylward Game Solicitors we have experienced Solicitors who will be able to assist you in navigating these aspects of your Family Law Matter. If you wish to discuss your parenting arrangements, please contact our office on 1800 217 217

Article Source: Child decide where they live 

Do Grandparents Have Rights in Australia?

Grandparents have a great love for their grandchildren. They want to spend more time with them. But sometimes the parents don’t want their parents to see their children. It is not good for them. But this is an unusual situation but what happens if the parent’s divorce? In this scenario the laws are different, let’s learn a little about the grandparents rights in Australia. 

Grandparent’s rights in Family law:

In Australia, the Family Law Act 1975 applies in cases of separation, division, property division, and custody of children. Grandparents have the right to apply in Family court and ask for the time to spend with their grandchildren. They can also ask for their custody in case of divorce or separation. 

The Family Act Law clearly states that grandparents can apply to the court for the best interest of their grandchildren. But it does not give them an automatic right to have a relationship with the children. 

Custody of children after custody of parents:

In most cases, parents can easily decide who will keep the children. Also, they don’t face any difficulty in making decisions for other aspects of their child’s life. They can put these decisions into a written agreement which is known as a parenting plan. Parents can make these arrangements more formal by writing consent orders and registering the document in the Family Court. 

If you feel that your relationship with the children will not be the same after the separation of their parents, you can ask their parents to include you in the parenting plan or the consent orders. It is not wise to leave the child’s best interest while making such documents. 

What are the child’s best interests?

When the parents are separating the court looks at:

1. Is the child comfortable around both parents?
2. Protection of the child.

The Court also considers:

• How the child feels about his/her parents.
• Relationship of the child with parents, grandparents, and other relations. 
• The willingness of each parent to support the relationship of the child with the other parent.
•  Effect of separation on the child. 
• The capacity of each parent to support the needs of the child. 
• The lifestyle and background of the child and parents. 
• Each parent’s love for the child and role in parenting. 
• Any violence in the family. 
• Any other point the Court thinks is relevant to the case. 

Are you not allowed to see your Grandchildren?

Sometimes grandparents are not allowed to see their grandchildren. It happens due to the breakdown of relationships with your child. Also, if the parents are divorced then the other parent may stop you from seeing the child. 

Unfortunately, the grandparents do not have the primary right to have custody of the child. But, any person who can show enough care and love for the child may apply to the court for parenting orders. If you have a parenting order then you can spend time with the child.

Parental rights vs Grandparents rights in Australia:

There is not a big difference between parents’ rights against grandparents rights in Australia. But they are not the official guardians of the child until they have a parenting order from the court. If the grandparents feel that their grandchildren are not getting proper parenting, they can apply to the court for custody of the child. If the parents make an agreement for the child after separation, the grandparents can ask the parents to add their rights also in the agreement. But still, if the court can order to stop grandparents from seeing the child according to the child’s best interest. 

How to see Grandchild?

The grandparents have the right to see grandchildren in QLD and all around Australia. But if you are having problems with their parents you can follow the given procedure to see your child. 

• Get legal advice: Each situation is unique, so you should get legal advice.
• Dispute resolution: Before going to court try to make an agreement with parents to save time and money. 
• Going to Court: If unfortunately, dispute resolution fails, you can contact the Court to get an order to spend time with your grandchild. 

This is a simple and effective procedure. If you have any queries you can contact us to get legal advice. 

Frequently asked questions:

If my daughter has named me as the guardian of her children will they live with me and not their father when she dies?

Even if you are named as the guardian of the child you don’t have the legal right to force the child to live with you. You can ask the court for custody of the child. If the other parent agrees that the children will live with you, you will still need Court orders. If you don’t have a court order you will have difficulty dealing with schools, doctors, or government departments. 

Do grandparents get financial assistance?

If you are responsible for at least 35% care of your grandchild you may receive child support. The child support agency calculates care according to the number of nights that the child is expected to spend with you in a year that is 12 months. 

Can I take custody of the child from my daughter?

Sometimes the child’s parents may not be the best of parents. They may have a mental illness or addiction which can affect the life of a child. If you find the child’s life at risk you should contact Child Safety Services. If you think that the child is safe with you you can ask the Court to take custody of the child.

For more information on your specific matter, please contact one of our experienced Brisbane Family lawyers at Aylward Game Solicitors.

Article Source

Article Source: Grandparents' Rights in Australia